Every end is a new beginning

I thought I'd written the last word on New Zealand electoral law. Then bloody Judith Collins tells the world she's going to make a whole lot more.

So yesterday was a good day. My daughter turned five, thus celebrated her last day at her (exceptionally good and highly recommended) preschool, Koputai Childcare Center with cupcakes and a gym-themed day of events. Then, when I finally got to work after participating in the first couple of hours of these festivities, I put the final touches to the manuscript for the second edition of my book, Election Law in New Zealand: Practice and Policy. After picking up the kids and having a meal out, we returned home, where I read a few chapters of a Benjamin Black novel ("John Banville writing as ...!") and went to bed tired but happy.

Then this morning I got up, only to discover upon perusing the Herald's website that Judith Collins has just announced that the Government will look to introduce a bunch of changes to electoral law in time for the next election. Meaning that I'm going to have to go back over my literally just completed text and make updates to a number of parts of it, in order to ensure its currency beyond the end of this year.

Now, there are two possible interpretations of this coincidence. One is that it is nothing more than random chance, with the Government's mandated response to the Justice and Electoral Committee's regular review of the previous election just happening to come out on the same day as I finish my account of the law as it currently stands. The other is that the GCSB have hacked into the University of Otago Law Faculty's computers and have been regularly updating Judith Collins on the progress of my work, thus enabling her to time this announcement at the moment of greatest inconvenience as revenge for my saying mean things about her here and here.

Well, I guess that the former explanation is possible. But, really, can we have any doubt that the second is the far, far more likely? I mean, we were all at the Mt Albert War Memorial Hall last night, weren't we?

Whatever the explanation, Collins' announcement means I have more work to do. So rather than go off and do it, here I am blogging about the Government's proposals. How does it intend to mess around with our electoral laws this time around?

Short answer - it's not completely clear. The actual response to the Justice and Electoral Committee's recommendations is pretty light on detail. It says that the Government will "work with" the Electoral Commission on seven issues that the Committee made recommendations on and that do not require legislative change. But as some of these issues - looking towards some form of electronic voting in the future, increasing the teaching of public civics education programmes - will require more spending, I wouldn't hold my breath.

Then, with regards those issues on which the Committee made recommendations and that require legislative change, the Government says only this:

The Government will carefully consider the policy implications of these remaining recommendations to determine whether change should be implemented for the 2014 election ... . The recommendations which require more significant consideration are unlikely to be included in a Bill prior to the 2014 election. However, the Government is seeking advice from the Ministry of Justice on these recommendations and will consider including them in future legislative change to electoral law. 

That isn't particularly helpful, insofar as it simply says "we'll have a think about things and might fix the easy stuff soon, but will leave the hard stuff 'till later." However, Collins appears to have expanded on what the Government has in mind in the Herald's story:

Justice Minister Judith Collins ... indicated she would look at bigger changes after the election, including whether police should continue to handle electoral offences.

This follows complaints that the police rarely prosecute and are slow to deal with cases.

Ms Collins this week released the Government response to recommendations for changes to electoral law after a review of the 2011 election, and said non-controversial changes which had broad support would be made in time for next year's election.

Those included ending an exemption which allowed party workers to wear party rosettes on election day - the biggest source of complaints from voters to the Electoral Commission on election day.

Ms Collins also intended to clamp down on the use of undisclosed loans after the Electoral Commission raised concerns that making loans which were later written off, rather than donations, could be used to dodge disclosure requirements.

There are three issues raised here, which I'll take in reverse order.

The issue of requiring loans to be disclosed in the same way donations currently are arose from Colin Craig's funding of the nascent Conservative Party in 2011. Basically, he gave it over a million dollars by way of a "loan" to fund its campaign, which did not have to be reported to the Electoral Commission at the time of its being made because a "loan" is not a "donation". Then, after the election was over and everyone stopped paying attention, Craig forgave that "loan".

So requiring parties (and, one assumes, individual candidates) to declare the loans that they may take out to fund their activities is a loophole closing measure. After all, there was precisely zero chance that the Conservative Party would ever be in a position to repay Craig the money he "lent" to it. So if it was in practice a donation, calling it something different shouldn't allow the Party to evade having to tell the public about it.

The second issue - ending an exemption that allows party workers (and others) to wear party rosettes on election day - is more complicated. To understand why this is in any way important, you first have to understand New Zealand's general approach to partisan political activity on election day itself. I describe it in my book as follows:

Running alongside the instrumental objective of preventing direct interference with the polling process are a set of “ritual and aesthetic” considerations.That is to say, the legal rules regulating polling not only seek to curb the possibility of partisan manipulation of the final outcome, but also work to shape the very way in which individuals are expected to approach the act of voting. This aim is particularly clear with respect to the regulation of general polling day behaviour, described in more detail in this chapter. By banning public processions or demonstrations on polling day, as well as requiring the removal of virtually all campaign material from public view, the law has stripped the occasion of much of the pageantry and ceremony once associated with it. The law instead requires that individual voters make their way quietly and soberly to the polling place without being subjected to any form of last-minute persuasion, take their ballot to the solitude of the voting booth, and make their final choice according to the private dictates of their conscience. The parallel between this social practice and forms of religious observance is not hard to see. Even the very expression “the sanctity of the polling place” is redolent with a quasi-spiritual meaning, invoking the notion that the casting of a vote “may be a whisper, but it is whispered to the gods”.

Consequently, the Electoral Act 1993 not only requires that people stop actively campaigning or seeking to influence how anyone votes at midnight on the day before polling day, but it also requires all posters, billboards and other sorts of campaign material be removed from public sight. It is even an technical offence, punishable by a fine of up to $20,000, to take off your top on election day and display to the world the ACT Party logo that you so proudly had tatooed across your back when you were young and the movement promised so much ... .

However, there presently is a legislative exception to this (really pretty draconian) regime with respect to:

ribbons, streamers, rosettes, or items of a similar nature, which are worn or displayed by any person (not being an electoral official) on his or her person or on any vehicle in party colours or a party lapel badge worn by any person (not being an electoral official).

And apparently this exemption was the cause of the bulk of the (comparatively few at 280) complaints that the Electoral Commission received on election day in 2011, as I assume people saw individuals wandering around with party paraphenalia on and assumed that they must be breaking the law. The Electoral Commission, which no doubt doesn't like getting complaints about anything to do with elections, then recommended to the Justice and Electoral Committee that the legislative exemption be removed. This is what the Committee then had to say on the matter:

Most of us support the Electoral Commission’s recommendation to remove current exemptions for lapel badges, ribbons, streamers, rosettes, balloons, and similar items on election day, with the exception of rosettes for scrutineers inside polling places.

The Labour members of the committee do not support this proposal on the basis that no such restrictions apply prior to polling day and in light of the increasing and significant numbers of voters who choose to exercise an early vote.


We recommend to the Government that it consider prohibiting electioneering activity on election day, including the wearing of rosettes, lapel badges, ribbons, streamers, and party apparel, other than the wearing of a party rosette by a scrutineer inside a polling station.

I just don't know about this one. For one thing, the mere fact that some people have complained does not seem a strong basis to further erode the already minimal right of individuals to express their political leanings on election day. I mean, what is the basis for such a complaint: "I saw someone wearing a NZ First rosette and carrying a black and white streamer as I was driving to the polling station, and the next thing you know I found myself voting for Winston Peters!"? Is that a credible concern?

Or is it simply that we want to so completely expunge all campaign activity from our election day that any reminder that political parties even exist is anathema? And if that is the case, then what is next - how will we respond to (say) Labour activists who are ferrying voters to the polls dressing in matching red T-Shirts and jackets? Or what do we do when Pete George spray paints himself purple and marches down the streets of Dunedin wearing nothing more than a pair of budgie smugglers? Will we then mandate that on election day people may wear nothing but the Electoral Commission's scrupulously neutral shade of orange?

Furthermore, tightening up even further on how people may physically declare their political loyalties on election day stands in uneasy tension with the way that people increasingly are expecting to be allowed to communicate with one another. As Toby Manhire discussed prior to the 2011 election, telling users of social media that they can't tell their followers what they've just done on election day (as in "Voted for National - get out and do it too!") is anathema to the "Twittersphere" (or whatever the kidz callz it). So what sort of world is it that we're trying to create here - one in which you can be arrested and fined up to $20,000 for wearing a lapel badge showing you are a member of the Greens, whilst the Electoral Commission combs Facebook and blog sites for comments that might "influence" how others vote? Really?

Finally, the Big Kahuna; whether police should continue to handle electoral offences. This has been a bugbear for a number of election cycles now. Here's how I describe it in my book:

The referral of some matter by an electoral agency (or any other person) does not mean it must be prosecuted. The Police, sometimes in conjunction with the Crown prosecutor, independently decide whether charges are warranted. Because this assessment involves a large degree of discretion, it inevitably opens the Police to accusations of partisan bias. Furthermore, should charges be laid, the case likely will be technical in nature, involving issues that are rarely investigated or argued before the courts. Although they have been strengthened in recent years, the potential penalties for electoral offences (especially “illegal practices”) remain relatively low, making it appear as though the issue is not that pressing. It also may not be clear which individual has committed any particular offence, particularly when an allegation relates to actions taken in the name of some political party. Moreover, all of these factors exist in the context of an institution facing many demands on limited resources. Simply put, the hours spent pursuing allegations against an electoral participant come at the cost of investigating matters such as burglaries, robberies and assaults—each of which have an identifiable individual victim who has been demonstrably harmed by the offence committed against them.

The net result is that the Police repeatedly have proven reluctant to prosecute alleged election campaign offences, especially when the target is a high-profile political figure. This is the case even where it finds strong evidence of a breach of the law. Following the 2005 election, for example, the electoral authorities reported 17 different potential breaches of the election campaign rules to the Police. These included allegations that the Labour Party had overspent the statutory limit on its election expenses and published election material without identifying the person authorising the publication; that members of the Exclusive Brethren Church had published leaflets in support of the National Party without gaining the appropriate authorisation or properly identifying the person publishing them; that union groups had published leaflets in support of the Labour Party without gaining the appropriate authorisation; and that the National Party had spent more than its total allocation on broadcasting expenses. However, although the Police found there was a prima facie case that an offence had been committed in at least some of these instances, they did not consider charges to be in the public interest. It is difficult to escape the conclusion that when faced with possible breaches of rather esoteric laws committed by electoral participants from across the political spectrum, the Police simply chose to wash their hands of the matter.

This apparent disinclination to pursue electoral offences continues to be displayed today. Following the 2011 election, the Electoral Commission believed there was a sufficient basis for referring 32 potential electoral campaign offences to the Police. In 6 of those cases—each involving the late submission of candidate or party election returns—statutory time limits expired before the Police took any action. And at the time of writing in 2013, the Police had closed the file on only another 3 cases, while 23 remained open. Consequently, despite eighteen months having passed since the election process’ end, in none of the referred matters had the Police brought the case before the courts.

Of course, matters likely would be different should there be an allegation of a more serious electoral offence made against some political figure, such as the corrupt practice of bribery or undue influence. The Police could be expected to pursue such a case with the appropriate vigour, as it did in relation to the then-MP Philip Field and allegations that he corruptly had received a bribe. But these sorts of grave offences no longer feature in New Zealand’s relatively clean electoral scene. Most allegations instead are of potential illegal practices or other largely administrative failures, which may be viewed as presenting a less immediate threat to the electoral process. This fact then raises the question as to whether relying on the Police to pursue criminal prosecutions is the best way to ensure these sorts of election rule are not only properly enforced, but are seen to be properly enforced. The risk is that if electoral participants come to believe they can breach at least some electoral laws with relative impunity, then the basis for the existing normative culture of self-enforcement will be undermined. For unless an electoral participant believes most other participants will obey the election rules, while the relatively few who transgress will be identified and punished, there is little incentive for that participant to obey the rules. Consequently, there may be good reason to change the enforcement mechanism for at least some types of electoral rule away from criminal offences prosecuted by the Police, to the Electoral Commission imposing quasi-administrative penalties.

So - what about that last proposal? Why not get the Electoral Commission to step in and take over the Police's role here? I go on to discuss that in my chapter on the Commission:

By and large, the Electoral Commission performs its various functions in an extremely professional and scrupulously non-partisan fashion. The major concern with its present oversight role lies in its limited powers to sanction individuals or organisations that it believes are acting or have acted in breach of the law. Currently, its enforcement power is limited to reporting suspected breaches of electoral law to the Police. And as already has been discussed in chapter 8, the Police repeatedly have proved reluctant to investigate and prosecute alleged electoral law offences. So while the fact that the commission has reported a matter to the Police may result in some political embarrasment, the repeated failure of that organisation to then bring matters before the courts means that there often is no effective legal consequence for contravening the electoral rules. In recognition of this problem, Parliament’s Justice and Electoral Committee has recommended that the Government consider examining the current electoral enforcement provisions to determine whether they are adequate.

One solution to the problem would be to give the Electoral Commission statutory powers to investigate and bring to court to potential breaches of (at least some) matters of electoral law, much as the Commerce Commission is empowered to investigate and prosecute alleged breaches of the Fair Trading Act 1986. The role played by the Commissioner of Canada Elections also provides a possible template. The Commissioner of Canada Elections is a non-partisan official appointed by Canada’s Chief Electoral Officer (who is in turn appointed by, and reports directly to, the Canadian Parliament), with the statutory duty to ensure compliance with Canada’s electoral law. In carrying out this responsibility, the Commissioner of Canada Elections can investigate any alleged breach of the electoral law and decide on an appropriate course of action to remedy any infraction. Therefore, he or she has exclusive responsibility for initiating a prosecution under Canada’s electoral law. In addition, the Commissioner of Canada Elections may negotiate binding compliance agreements with electoral participants to remedy a breach of the electoral law, or seek injunctions from the courts to prevent an ongoing breach of the law.

However, empowering the commission to investigate and prosecute electoral offences would involve a significant change to its current role, turning it from a largely passive administrative body that seeks to educate participants on their legal obligations to an active participant in the electoral game. Such a change in role might result in the commission becoming more frequently involved in issues that have potential political consequences for a particular party or candidate, which could in turn undermine the general trust in its role as a non-partisan institution. Giving the commission an active investigative and prosecutorial role also would require the hiring of additional staff with experience in conducting investigations and preparing matters for trial. And while every election sees some claims that the electoral rules have been breached, one may ask whether these claims are widespread and serious enough to warrant the expense involved in creating a specialist election law enforcement unit that would, for large parts of the election cycle, have little or no work to do.

As such, it may be desirable to adopt a half-way position, whereby the commission is empowered to directly levy fines for less serious and easily provable breaches of electoral law­—such as the late filing of financial returns by candidates or parties, or the like. The broader problem of the Police’s reluctance to investigate and prosecute electoral offences might then be addressed through changes to the Solicitor-General’s guidelines, to emphasise that “harm to the democratic process” is a factor to be considered when assessing the severity of any reported offence.

 OK - that's a lot of my thoughts on this. Now I better get back and put them in a form that people will pay a lot of money to access ... because that's the only sort of "research" that counts.